On the Move

Stephen Sedley

There’s an episode of The Wire in which the intellectual drug baron Stringer Bell, trying to launder his gang’s profits by legitimate real estate development, finds the project stalled by bureaucratic delays. He is tactfully advised by his contractor that it takes money in the right place to get things moving. Bell is outraged; but, as the contractor explains, it’s ‘democracy in action’. The day after I had laughed aloud at this, I read that one of the London boroughs is considering introducing such a system: if you want your planning application dealt with promptly, it will cost you, while for everyone else the wait will get even longer. The difference is that this system will be entirely above board.

Is it constitutional for a public authority to offer different standards of public service in return for premiums? Fifty years ago it might well have been doubted. But the postwar notion that the state provided service according to need, and that if queues formed they were not to be jumped, has given way to an entrepreneurial model in which, subject to a safety net at one level or another, you pay for what you get and you get what you pay for. Each concept has acquired constitutional legitimacy in its time – for, as John Griffith famously observed, the constitution is what happens.

So when you pick up The New British Constitution and ask what new constitution that might be, one answer is that the British constitution, because it is always changing, is always new. But the veteran political scientist Vernon Bogdanor goes further. His thesis is that since the election of the Blair government in 1997 the pace and depth of constitutional change have increased to a point where a new shape of the state, though still fuzzy in outline and incomplete in detail, can be discerned and described with some confidence.

Riskily, however, Bogdanor takes the cornerstone of the new constitution (the metaphor is his) to be the 1998 Human Rights Act. The sustained media assault on the act and on the European Convention on Human Rights which it patriates has scared ministers and shadow ministers alike into blaming the act for everything that goes wrong in the justice system. The Sun’s casual description of it (in a news story) as ‘the hated law which frees murderers to kill again’ has been internalised by the political culture to a point where the opposition has felt able to pledge repeal of the act without – so far – any firm indication of what will follow. Yet unless it withdraws from both the Council of Europe and the EU, the UK will still have its treaty obligation to respect the convention. Will the right of individual petition to the Strasbourg court be revoked? If a new code of rights and obligations is to replace it, will it be convention-minus, convention-plus or just convention-lite? Labour too is looking for ways of hedging or qualifying the convention. Only the Lib Dems seem inclined to defend it. Whatever happens next, Bogdanor’s cornerstone currently looks insecure.

The edifice which he nevertheless sees rising up above it is a pretty ambitious one: no longer a parliamentary democracy in which ultimate power resides in a representative legislature but a popular democracy based on localised devolution of power, reflecting the individualism which both Thatcher and Blair have validated, fuelled by the participatory potential of information technology. And since, he argues, most of the big constitutional changes of our era have been statutory – the European Communities Act 1972, the Human Rights Act 1998 and so forth – it is no longer problematical to assemble what happens into a written constitution.

Utopian or dystopian? It’s not simply that freezing the frame at an arbitrary point of time is a recipe for constitutional paralysis. It’s that, if change is in truth destined to go in the direction Bogdanor predicts, democracy will not necessarily be any richer or the way we are governed any better. Anybody with experience of community politics will know how vulnerable it is to demagogy, to sectional interests, to parochialism and, when big issues or money are involved, to hijacking. That may not make it any worse than what we now have, but it won’t make it a whole lot better. Bogdanor’s description of the political philosophy of individualism as ‘cutting power into pieces’ may be well chosen; but to say, as he does in the next breath, that this corresponds with the liberal concept of limited government is to make a very large set of assumptions.

Bogdanor’s starting point is, as it has been for the whole of his generation of political scientists and my generation of constitutional lawyers, the writings of Bagehot and Dicey. Bagehot, in his bright and energetic prose, went out of his way to stress how little separation actually existed in mid-Victorian Britain between the executive and legislative powers of the state located in cabinet and Parliament. He was right to point it out but wrong to support it. The dominance of Parliament by ministers and their departments was and remains a major issue for parliamentarians. But Bagehot’s sound account of the organic nature of the constitution stood and stands in sharp contrast to Dicey’s iconic reverence for the arrangements he chose to see and describe. Leaving aside his xenophobic and counterfactual insistence that Britain, unlike France, had no body of administrative law, Dicey’s doctrine of parliamentary supremacism stood firm until Home Rule came up: then he changed his mind and argued that there were some things that even Parliament couldn’t do. This apart, Dicey’s was a classic endeavour to enshrine what happened (or what he claimed happened) as what ought always to happen, and Bogdanor is wise, arguably even generous, to describe Dicey’s account of the Victorian constitution as ‘perhaps … reasonably accurate’.

His argument, however, is that that was then and that what has now happened has made much of it irrelevant. This is the clean break he needs if he is to make good his ‘new constitution’ thesis. But is it really there?

The first turning point, Bogdanor suggests, was the enactment in 1972 of a UK statute making European Union law superior even to Parliament’s legislation. The statute has certainly operated at that radical level, but what is perhaps equally important is that it is no more than an act of Parliament and can still be repealed by a simple majority. That does not necessarily suggest a constitutional measure. Nor does the occasional use since 1975 of referendums, admittedly a measure of direct democracy even if heavily mediated by the way the question is put; nor the introduction of PR for European elections. But Bogdanor’s big argument is that since 1997 constitutional change has gone into overdrive. He lists 15 measures, starting with the withdrawal of the Treasury’s hand from the Bank of England’s monetary policy, and running through the devolution of major central powers, the increasing use of PR and the introduction of mayoral government, to the partial reform of the House of Lords, the Freedom of Information Act, the regulation of political parties and their funding, and the recasting of the judicial system.

The last of these is without doubt a real shift in the shape of the constitution. The law lords this autumn cease to be members of the legislature and become a distinct supreme court. The umbilicus linking judiciary and cabinet has already been severed as the lord chancellor has ceased to be head of the judiciary and become a rank and file minister, and as an independent commission has taken over his role of appointing judges. But Bogdanor makes the cogent point that if, instead of the disorderly and protracted way in which these changes have been introduced, they had been carried out in a single methodical swoop, the arrival of a new constitutional order would have been all but undeniable.

That may be; but it may equally be said that the very disorderliness of the process, the toe-in-the-water approach to reform of the upper house, the resort to referendums to decide whether cities shall have mayors, the use of PR for some elections but not others, are examples of much the same kind of organic development as Bagehot was describing. If one were determined to locate a constitutional moment between the Victorians and us, the postwar institution of the welfare state might be a stronger candidate, realigning as it did the relationship of state to individual and bringing as it did in its train the revival and reassertion of judicial oversight of executive and local government which remains one of the dominant features of the constitution (and which has very little to do, save in terms of subject matter, with the Human Rights Act).

The high point of Bogdanor’s conspectus is also, through no fault of his, the most tantalising and least conclusive. It is now widely accepted, and Bogdanor does not dispute, that the doctrine of parliamentary supremacy is itself an artefact of the common law, growing out of the historic compromise between the three limbs of the crown – legislative, judicial and executive – which was reached in the course of the 17th century and has been developed in modern concepts of the rule of law. Off parade, one or two senior judges have in the past considered the consequent possibility that if parliamentary legislation were to violate fundamental constitutional norms it might be the duty of the courts to disapply it. But recently, on parade in the case challenging the hunting legislation, three of the law lords took the opportunity to spell it out. Bogdanor cites the storm warnings given by Lord Steyn, Lady Hale and Lord Hope. Hope, one of the Scottish law lords, said: ‘Parliamentary sovereignty is no longer, if it ever was, absolute … Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament … is being qualified.’ He went on to locate the ultimate constitutional control – Hart’s rule of recognition – in ‘the rule of law enforced by the courts’. (Bogdanor, in an interesting footnote, relates Scottish scepticism about the absoluteness of Parliament’s sovereignty to the longstanding view that the 1707 Act of Union left the Scottish legal system and Presbyterian church beyond the reach of Westminster.)

This is potent and pregnant stuff. The outcome of the hunting ban case didn’t depend on it, but, not long before, the government had been forced to drop a clause in an asylum bill which would have shut off all judicial review and appeal to the courts. Ronald Dworkin in a lecture in Cambridge had called on the judges, if it was passed into law, to hold it unconstitutional and to treat it as invalid. His suggestion brought into sharp focus the allocation of power between Parliament and the courts, a polarity that Bogdanor identifies as the site of a potential constitutional crisis. For what would happen in real life if the higher courts treated such a withdrawal of their jurisdiction as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out.

What is more, a constitutional moment of truth is nowhere near as imminent as Bogdanor suggests. He thinks there is a conflict, created by the Human Rights Act and developing at what he calls remarkable speed, between the judges on one side and government, Parliament and the people on the other. This is an analysis which owes more to tabloid journalism than to constitutional reality. The reality is that, without taking the last word away from Parliament, the Human Rights Act has given the courts a voice in determining the compatibility of legislation with the convention, and Parliament and government have had the wisdom to heed the courts’ advice on the relatively few occasions when it has been negative. The law lords’ holding that the indefinite detention of foreign nationals on security grounds was contrary to the convention was accepted – albeit through gritted teeth – and different legislation introduced.

That is not conflict: it is part of a major constitutional shift, initiated not by the judges but by Parliament, by which the judicial functions of statutory interpretation and protection of fundamental rights have been dovetailed with the legislative process. Inevitably, the media’s badmouthing of the Human Rights Act has succeeded in obscuring this constitutional achievement, but it is a pity that Bogdanor buys into it. That there remain areas of law in which the judges are frustrated with Parliament (the proliferation and complexity of criminal justice statutes, for example) and others where ministers are fed up with judges (for example in areas of asylum law) is not a harbinger of crisis or breakdown: it’s what happens under the rule of law in a democracy. It might be otherwise if Bogdanor’s assertion that ‘the judiciary is the only one of the three branches of government to hold unchecked and unaccountable power’ were correct; but to believe this you would need never to have read a reasoned judgment, and to have forgotten that Parliament has not only final legislative power but sits on ethical questions as judge in its own cause.

The still larger question, whether constitutional change has now acquired a critical mass or is simply happening as it always has done, may be less important than the fact that no constitution, except perhaps that of a moribund state, stands still, and that ours is and for some time has been, as Bogdanor says, changing before our eyes. The devolution of major state powers to Scotland in particular is a true constitutional change, both because it is in practice irreversible without the consent of the Scots and because it is capable of having opened the door to a unilateral declaration of independence.

The changes to the judicial system are also probably irreversible, despite their not inconsiderable problems. The requirement to apply for all judicial posts is no doubt an advance on the tap on the shoulder from a lord chancellor who has been taking private soundings from senior judges – itself an advance on Lord Salisbury’s belief (cited by Bogdanor) that an unwritten law dictated ‘that party claims should always weigh very heavily in the disposal of the highest legal appointments’. But the self-promotion that applications involve does not necessarily reveal the best candidates. Nor has it done much so far to redress the imbalances on the bench of gender and ethnicity. This is not because the appointments commission has been less than conscientious in its efforts. It is because the legal profession itself does not give women and minorities the same chance to shine as their white male counterparts. The real stars probably shine anyway; but the critical difference is with the average – sometimes very average – white male practitioner who can still reach the upper tranche of the practising profession. You cannot constitutionalise this problem: it has legal aspects but it reaches deeper than any law.

There is a further series of problems with recorderships – part-time judicial appointments. These are a requisite first step on the staircase to the bench, for which applications can now outnumber vacancies by a factor of 20 or more. The new system, recognising the hazards of self-promotion, moved from shortlisting on the basis of references, with its capacity for idiosyncrasy, to a tickbox system which had the effect of excluding good candidates with atypical CVs, and from there to shortlisting by examination. This too is proving problematic: barristers who are at or close to the peak of an intellectually exacting profession, and whom the judges they appear before know to be outstandingly able, are failing the examinations which allow them to be shortlisted for interview as potential recorders. The commission is yet again reviewing the system, for it would be ironic if a practice which, though indefensible in principle, delivered at least some of the goods had been replaced by a process which rewarded mediocrity at the expense of talent.

The effect of the changes to the judicial system, like the effect of devolution, is thus neither prescribed nor predictable. What, however, any reformed constitution must surely contain is an acceptable template of parliamentary conduct, something which three centuries of self-regulation have failed to provide. The Committee on Standards in Public Life, whose proposals are awaited, has a great deal to think about. Will modifying the allowance system answer the underlying problem of a parliamentary salary which many think incommensurate with the status and responsibilities of an MP? Will enhancing the salary be an acceptable solution if second jobs and employed relatives continue to be tolerated? Then there are Parliament’s own composition and procedures. Should it continue to be possible for a single MP to sink private members’ bills which otherwise have the support of the whole house? Should a member of either house who has declared an interest be able, unlike a local councillor, to remain and vote? Are we ever going to resolve the West Lothian question? And what is to become of the upper house? Election of its members will, on a strategic level, deprive prime ministers of ultimate control of its composition, and on a political level may challenge the legitimacy of the Commons. Although ministers have now settled on a four-fifths elected chamber, on what basis are the members to be elected? If after 12 years of proposals and withdrawals we still do not know, it may be less because of political hesitancy than because the issue is genuinely intractable.

Bogdanor, a vastly knowledgeable writer, is long on voting systems but short on these much bigger questions. Yet without answers to them any new constitution would be a lame thing. By no means uniquely, the UK’s constitution is not a fact but a process, a space to be watched. Ineluctably and unevenly, the old order changes; but to assert that it has become a qualitatively new dispensation is, at least for the present, to jump a gun which may never go off.